The High Court’s ‘right to rent’ decision is a travesty | Richard Ekins

The political campaign against the UK’s immigration laws secured an important victory yesterday, with the High Court denouncing sections 20-37 of the Immigration Act 2014 as racially discriminatory – not by discriminatory intent or design but “indirectly”, by side effect. Those “right to rent” provisions make it unlawful for private landlords to rent property to persons unlawfully in the UK and so require landlords to check the immigration status of prospective tenants. Introduced on a trial basis in the West Midlands, the scheme was extended across England from February 2016. The Government’s intent has been to exercise its powers in the 2014 Act to extend the scheme across the entire UK.

The Joint Council for the Welfare of Immigrants, with support from the Residential Landlords Association and Liberty, persuaded the High Court that the legislation discriminates on the basis of race and nationality. The Court exercised its powers under the Human Rights Act 1998 to declare the legislation incompatible with the European Convention on Human Rights (ECHR). It also declared that it would be irrational and thus unlawful for the Government to extend the legislative scheme across the rest of the UK without further evaluating its effectiveness and discriminatory effect. This was and is an incredible judgment which should be reversed on appeal and/or by legislation.

The High Court reasoned that requiring landlords to check the immigration status of prospective tenants caused landlords to discriminate against those who had a right to rent – that is, who were not in the UK unlawfully – and yet who were not (white) British citizens. Article 14 of the ECHR provides that convention rights shall be secured without discrimination on the grounds of, among other things, race or national origin. The convention right to be secured without discrimination is in this case, the Court reasoned, the Article 8 right everyone has: “to respect for his private and family life, his home and his correspondence”. But Article 8 does not entitle anyone to a home. And discrimination by landlords against prospective tenants does not interfere with respect for their home, especially if, as is likely in relation to lawful migrants, they are subsequently able to secure some other tenancy. The High Court’s answer to this basic problem was to go beyond settled law and to assert that even indirect racial discrimination is so wrong that the “ambit” of Article 8 must expand in order to support a ruling that the “right to rent” scheme discriminates unlawfully – thus, the Court pulled itself up by its own bootstraps.

In any case, how did the Immigration Act cause landlords to discriminate? And is Parliament responsible for discrimination by third parties, especially if it has taken pains to discourage such discrimination, including by making it unlawful? Much of the High Court’s judgment consists in a review of empirical evidence about what landlords have done or intend to do, evidence which turns on analysis of survey results and their statistical significance. This is not evidence which courts are well-placed to consider, especially when, as in this case, they relate to the merits of general social policy embedded in legislation. At each turn, the Court accepts uncritically the evidence of the claimants and puts the onus on the Government to prove that the scheme is effective and non-discriminatory. It also discounts the careful attempts made by Parliament and Government to prevent landlords from unlawfully discriminating against those who do have a right to rent.

But the central question the Court had to decide, as so often in human rights law cases, is the unavoidably political one of whether the right to rent scheme was justified, all things considered. Here the Court’s reasoning is particularly problematic. The Court concludes that Parliament’s policy in enacting the 2014 Act was “manifestly without reasonable foundation”, as it was ineffective in controlling unlawful migration, and even if it had been effective or more effective that effect was nonetheless outweighed by the legislation’s discriminatory effect. This is not a fit question for a court to decide and its answer is astonishing. Limiting entitlement to rent, as with the right to work, is rationally related to the integrity of the UK’s migration laws, and serves both to discourage unlawful migrants from remaining in the UK and to discourage others from entering in the first place. The claimants’ and the Court’s sketchy and implausible effort to show that the legislation does not have any such disincentive effect gives prominence to the low numbers of removals of unlawful migrants. The effort is misdirected, but grimly amusing, for non-arrival, departure and removal are three different things, and the (growing) difficulty of removal arises in part from the extent to which human rights law and litigation impedes it.

Parliament was aware, in enacting the 2014 Act, that there was a risk that some landlords would respond to the scheme by unlawfully discriminating against some who had a right to rent. It took steps to minimise this risk, which arose as an unintended effect, a side effect, of a rational, reasonable policy. The High Court’s denunciation of the 2014 Act takes over Parliament’s responsibility for deciding how to weigh up the means and ends, and especially the side effects, of contested public policies. Adding insult to injury, the Court roundly declares “that any scheme of this kind will inexorably lead landlords down the path of discrimination and operate in a way which is incompatible with Article 14 ECHR”. In this way, the Court seeks to shut the door entirely on Parliament’s policy of limiting the right to rent (and why not, by analogy, the right to work?) to those who are lawfully in the UK.

The Government can appeal and will have a strong case if it does so. Appellate courts would be wise to reverse, but if they do not, Government and Parliament would be constitutionally entitled to stand their ground, refusing to accept that this is a question properly for the courts to decide and refusing to change the law in consequence. The Human Rights Act reserves to our elected representatives the capacity in the end to defy the courts in this way, even while it, wrongly in my view, invites and often requires courts to stray into the political realm in the first place.

As for the High Court’s declaration that it would be irrational and unlawful for the Government to bring these provisions of the Immigration Act into force across the rest of the UK, this is a collateral attack on the legislation itself. There is a very strong case for this ruling to be overturned on appeal or reversed by legislation. It is for ministers accountable to Parliament to decide how to exercise the powers of commencement conferred on them by Parliament, to decide when and where legislation is to be brought into force. In trying to take over this power, the Court demonstrated still further its hostility to Parliament’s policy, the merits of which should be for Parliament itself to decide, free from the distortion caused by litigation of this kind.